Despite the famous claim of author Finley Peter Dunne’s fictional Irish saloonkeeper, Mr. Dooley, that “The Supreme Court follows the election returns,” law and politics are in theory supposed to be distinct domains.

After all, our U.S. senators, representatives, the president, and the vice president are elected to represent the voters. Federal judges, unelected in order to ensure their independence, do not; they represent the law.

We do well to remember this latter point, however much political scientists and legal scholars debate it, as we face what is already a highly contested and highly political confirmation process for President Donald Trump’s nominee to retiring Justice Anthony Kennedy’s seat on the U.S. Supreme Court, Judge Brett Kavanaugh.

Significantly, Kavanaugh took the opportunity of his televised nomination announcement to say this: “My judicial philosophy is straightforward. A judge must be independent, and must interpret the law, not make the law. A judge must interpret statutes as written, and a judge must interpret the Constitution as written, informed by history and tradition and precedent.”

While Supreme Court nominees ever since the failed confirmation of Judge Robert Bork in 1987 have insisted that senators may not legitimately question them about particular matters that might come before them on the court, Kavanaugh’s statement explicitly acknowledges the precise and constitutionally necessary task of the Senate: to inquire about a nominee’s general judicial philosophy and approach to legal decision-making.

The principle implicit in Kavanaugh’s statement is that judges must decide cases on the basis of the law and not on the basis of their own personal moral, political, religious, or other such values and preferences. As Bork wrote in 1982: “The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else.”

Like Bork, Kavanaugh claims to be an adherent of originalism, the interpretive theory that the meaning of the Constitution is what it meant to those who wrote and ratified it, as opposed to non-originalism, the interpretive theory that the meaning of the Constitution is what it means to people today.

Originalists claim that it is only their approach that can guarantee that a judge will have an objective standard rather than his or her own values in reaching a decision. None of this is uncontroversial, but the principle that the judge’s authority requires a distinction between the law and one’s personal values is correct.

Now consider the 1989 Supreme Court case of Texas v. Johnson, which dealt with the constitutionality of a Texas statute that banned flag-burning as a means of political protest. The Court overturned that statute as inconsistent with the First Amendment, a 5-4 vote that included Justices Kennedy and Antonin Scalia along with, unusually enough, liberal Justices Harry Blackmun, William Brennan, and Thurgood Marshall.

The significant point appears in this statement by Kennedy: “The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.”

Clearly, from his personal perspective Kennedy did not want to vote to uphold flag-burning — but he did. The fundamental confirmation question, therefore, is this: Can a nominee with a record of judicial decisions point to at least a handful of cases in which he or she reached a result that was inconsistent with if not flatly contradictory of his or her own personal values-based position? If the legal result always comes out in accordance with the nominee’s personal values, whether those be conservative, liberal, or anything else, then there is a problem.

Senator Chuck Grassley, as chair of the Senate Judiciary Committee, ask Judge Kavanaugh this question. He owes all Americans a detailed answer.

Dennis Goldford
(Photo:
Special to the Des Moines Register
)

Dennis Goldford is chair of the Department of Political Science at Drake University and author of "The American Constitution and the Debate over Originalism."